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313 Nebraska Reports

BUTTERCASE V. DAVI

Cite as 313 Neb. 1

Joseph J. Buttercase, appellant, v. 

James Martin Davis and Davis 

Law Office, appellees.

___ N.W.2d ___

Filed December 9, 2022. No. S-20-871.

1. Summary Judgment: Appeal and Error. In reviewing a summary 

judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment was granted, and 

gives that party the benefit of all reasonable inferences deducible from 

the evidence.

2. ____: ____. An appellate court affirms a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there 

is no genuine issue as to any material facts and that the moving party is 

entitled to judgment as a matter of law.

3. Summary Judgment: Final Orders: Appeal and Error. Although 

the denial of a motion for summary judgment, standing alone, is not a 

final, appealable order, when adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the 

reviewing court obtains jurisdiction over all motions and may determine 

the controversy which is the subject of those motions or make an order 

specifying the facts which appear without substantial controversy and 

direct such further proceedings as it deems just.

4. Default Judgments: Pleadings: Appeal and Error. Whether default 

judgment should be entered because of a party’s failure to timely 

respond to a petition rests within the discretion of the trial court, and 

an abuse of discretion must affirmatively appear to justify a reversal on 

such a ground.

5. Judgments: Appeal and Error. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

6. Appeal and Error. The grant or denial of a stay of proceedings is 

reviewed for an abuse of discretion.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/16/2022 08:04 AM CST
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7. Trial: Evidence: Appeal and Error. A trial court has the discretion to 

determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse 

of that discretion.

8. Judges: Recusal: Appeal and Error. A motion requesting a judge to 

recuse himself or herself on the ground of bias or prejudice is addressed 

to the discretion of the judge, and an order overruling such a motion will 

be affirmed on appeal unless the record establishes bias or prejudice as a 

matter of law.

9. Criminal Law: Malpractice: Attorney and Client: Negligence: 

Proof: Proximate Cause: Damages. A convicted criminal who files 

a legal malpractice claim must plead and prove the following: (1) the 

attorney’s employment, (2) the attorney’s neglect of a reasonable duty, 

(3) that such negligence resulted in and was the proximate cause of loss 

(damages) to the client, and (4) innocence of the underlying crime with 

which the plaintiff was charged.

10. Evidence: Proof. Failure of proof concerning an essential element of the 

nonmoving party’s case necessarily renders all other facts immaterial.

11. Negligence: Actions. Merely because a cause of action is couched in 

terms of a cause of action other than negligence does not make it so.

12. Constitutional Law: Actions. A litigant has no constitutional right 

to have civil proceedings stayed pending the outcome of a criminal 

investigation.

13. Actions: Proof. The burden of establishing that a proceeding should be 

stayed rests on the party seeking the stay.

14. Evidence. Relevancy requires only that the probative value be something more than nothing.

15. ____. Most, if not all, evidence offered by a party is calculated to be 

prejudicial to the opposing party.

16. Evidence: Words and Phrases. Unfair prejudice means an undue tend

ency to suggest a decision based on an improper basis.

17. Judges: Recusal: Presumptions. A defendant seeking to disqualify a 

judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

Appeal from the District Court for Lancaster County: Darla 

S. Ideus, Judge. Affirmed.

Joseph J. Buttercase, pro se on brief, and Darik J. Von Loh, 

of Hernandez Frantz, Von Loh, for appellant.

Nicholas F. Miller, of Baird Holm, L.L.P., for appellees.
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BUTTERCASE V. DAVI

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Cassel, Stacy, Funke, Papik, and Freudenberg, JJ., and 

Wheelock and Post, District Judges.

Funke, J.

INTRODUCTION

Joseph J. Buttercase was indicted on federal child pornography charges. James Martin Davis, attorney at law, and the 

Davis Law Office (collectively Davis) represented him in 

the matter for approximately 13 months before withdrawing. 

Buttercase subsequently pled guilty to an obscenity charge 

and then sued Davis for legal malpractice, breach of contract, 

breach of fiduciary duties, misrepresentation, and infliction 

of emotional distress. Construing all these claims as legal 

malpractice because they arose from Davis’ conduct as an 

attorney, the district court for Lancaster County, Nebraska, 

granted Davis summary judgment because Buttercase failed to 

offer any evidence that he was actually innocent of the charges 

for which Davis was representing him. The district court also 

denied Buttercase partial summary judgment on his breach of 

contract claim and issued several prejudgment interlocutory 

rulings against him. Buttercase appeals. The appeal is without 

merit. We affirm.

BACKGROUND

Federal Proceedings

In December 2012, Buttercase was indicted for producing, 

manufacturing, transporting, and possessing child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252A(a)(1) and 

(a)(5)(B) (2018). Because Buttercase was incarcerated, his parents met with Davis and arranged for Davis to represent him. 

The parties’ agreement was verbal, and they later disagreed 

about whether the $15,000 payment to Davis after this meeting 

was a flat fee to cover all federal proceedings, including “all 

motions, hearings, trial, and not more than two appeals,” or a 

nonrefundable retainer with additional fees for trial.

Davis entered an appearance indicating his representation of 

Buttercase concerning the federal charges. He then moved to 
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suppress the evidence against Buttercase and, when this failed, 

arranged for him to plead guilty to one count of possessing 

child pornography, with a sentence of 30 months’ imprisonment. However, Buttercase refused to pay the full fee for a 

computer expert retained to testify at the suppression hearing 

and he rejected the proposed plea deal.

Matters came to a head when Davis asked Buttercase to 

sign a written agreement regarding the per diem fees for trial. 

Buttercase refused. He sent Davis a letter asserting that “trying 

to get more money (renegotiate) so close to trial seems like 

extortion” and that he expected Davis to perform all services 

allegedly required under the agreement or refund the $15,000. 

As a result, Davis sought and received the federal court’s permission to withdraw as counsel for Buttercase.

Buttercase filed a bar complaint against Davis, and the matter was referred to the federal court for investigation.

Nearly a year later, Buttercase, now represented by a federal public defender, pled guilty to producing and transporting 

obscene materials for distribution, a violation of 18 U.S.C. 

§ 1465 (2018), and was sentenced to 36 months’ imprisonment, to run concurrently with the state sentence he was then 

serving. Buttercase’s ex-wife and alleged victim testified at the 

sentencing hearing that she and Buttercase “married when I 

was a minor” and that she was a “consenting adult” in videos 

or images of her.

The federal court held an evidentiary hearing on the ethics 

complaint, at which Buttercase, Davis, and others testified. A 

magistrate judge subsequently found that “Davis did not commit an ethical violation” and “did not misrepresent the facts in 

his motion to withdraw” and recommended that the bar complaint be dismissed. This recommendation was adopted by the 

federal district court.

Initial Pleadings and Motions

On February 22, 2017, Buttercase sued Davis for breach 

of fiduciary duty. The complaint alleged that Davis “reneged” 

on the agreed-upon fees for the computer expert and for 
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representation at trial and withdrew without performing under 

the contract or refunding the money. It also alleged that Davis 

committed fraud and disclosed sensitive or privileged information about Buttercase’s criminal case in the motion to withdraw and failed to return case files to him after withdrawing.

Buttercase then filed an amended complaint on March 1, 

2017, which Davis moved to dismiss. Buttercase, in turn, 

sought leave to amend. Davis did not object, the motion to 

amend was granted, and the hearing on the motion to dismiss 

was canceled. Buttercase filed a second amended complaint on 

June 5. Both amended complaints were generally identical to 

the original complaint, differing only as to the statutory basis 

for the court’s jurisdiction and in their descriptions of the federal court’s ethics investigation.

Thereafter, on July 31, 2017, Buttercase moved for a default 

judgment because Davis failed to plead in response to the 

second amended complaint. Davis answered on August 10. 

However, Buttercase objected and moved to strike the answer 

on the grounds that failure to answer within 30 days after serv

ice should be treated as an admission of all allegations.

At the hearing on the motions, Buttercase relied on his 

pleadings, while Davis argued that the court had set no deadline for responding to the second amended complaint. The court 

overruled the motion for a default judgment because “[t]here is 

an Answer on file and we will proceed on that basis.” It also 

overruled the motion to strike.

Over 1 year later, on January 14, 2019, Buttercase filed a 

third amended complaint, alleging legal malpractice, breach 

of contract, breach of fiduciary duties, misrepresentation, and 

infliction of emotional distress. The primary focus of the complaint dealt with the alleged legal malpractice, reiterating the 

allegations of the original complaint and making new allegations regarding Davis’ failure to investigate and seek dismissal 

of the charges, failure to disclose issues with the computer 

expert’s qualifications and billing practices, and attempt to 

“coerce” Buttercase into pleading guilty to possessing child 
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pornography. A separate section captioned “Breach of Contract” 

alleged that Davis failed to perform under the contract or 

refund the $15,000.

Thereafter, on March 14, 2019, Buttercase made a second 

motion for a default judgment. The district court heard arguments on this motion, but Davis did not appear nor was he 

represented by counsel. However, in July, Davis moved to 

strike several pleadings, including the third amended complaint, because they were not properly served on him, and he 

advised the court that he had not received proper notice of all 

proceedings to date.

Subsequently, on August 5, 2019, the district court denied 

Buttercase’s second motion for a default judgment, but it 

amended the progression order to give him an additional 6 

months to disclose his expert witnesses. The court also ordered 

Davis to answer the third amended complaint within 14 days.

Davis failed to answer within this time, and on September 

13, 2019, Buttercase filed a third motion for a default judgment. Davis answered on September 16. Then, on October 2, 

Buttercase made a second objection and motion to strike Davis’ 

answer and moved to stay the case until his federal “criminal 

case” was resolved.

At the hearing on Buttercase’s motions, Buttercase renewed 

his argument that Davis’ answer was late and clarified that 

his “criminal case” involved federal postconviction relief. 

Davis countered that, regardless of whether he was late in 

answering, there was an answer on file, and “all we have to 

do is stand by our earlier answer.” The district court overruled 

Buttercase’s motions.

Cross-Motions for 

Summary Judgment

Davis moved for summary judgment and later filed an 

amended motion. Buttercase, in turn, filed his own motion for 

partial summary judgment on his breach of contract claim, 

followed by an amended motion.
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The hearing on the parties’ cross-motions for summary 

judgment began with Buttercase’s objections to Davis’ exhibits 22 through 30, which included, respectively, Davis’ affidavit; the docket, indictment, petition to enter a guilty plea, 

plea agreement, and judgment in the federal criminal case; the 

findings, recommendations, and order of dismissal from the 

ethics investigation; and the sentencing order for Buttercase’s 

Nebraska convictions. Buttercase argued that all were irrelevant because he was not a party to or represented by Davis 

in these proceedings or, alternatively, if relevant, should be 

excluded because they were unfairly prejudicial. He also 

argued that Davis’ affidavit; the plea petition, plea agreement, 

and judgment in the federal case; and the state sentencing 

order were inadmissible because they involved pleas, plea 

discussions, or convictions on appeal. In addition, he asserted 

that all evidence regarding the ethics investigation should 

be excluded because Davis committed fraud when seeking 

to withdraw.

Davis, in turn, objected to Buttercase’s exhibit 14, the affidavit of the attorney Buttercase planned to call as an expert 

witness, because Buttercase did not disclose his expert by the 

deadline set in the progression order. Buttercase countered that 

the late disclosure was harmless because it did not prejudice 

Davis or disrupt the trial’s efficiency, and the court could 

waive its own rules. He also argued that Davis “failed to follow 

the court’s orders on numerous occasions.”

As to the merits of his summary judgment motion, Davis 

argued that there was no genuine issue of material fact and 

that he was entitled to judgment as a matter of law because 

Buttercase failed to timely disclose his expert, offered no 

evidence to support his claim of actual innocence, alleged 

no damages that he could prove Davis proximately caused, 

and did not file an evidence index and annotated statement of 

disputed facts. Buttercase responded that Davis also failed to 

timely disclose his experts. In addition, he argued that exhibit 

20, the transcript of his sentencing hearing, was evidence of 
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his actual innocence because it included his ex-wife’s testimony about her age.

Buttercase, for his part, argued that he was entitled to partial 

summary judgment on his breach of contract claim because 

he “made a prima facie case with his production” of exhibits. 

These exhibits included affidavits from him and his parents, a 

receipt for $15,000, correspondence about the per diem fees, 

Davis’ motion to withdraw, and the judgment in the federal 

criminal case.

Subsequently, the district court overruled the objections 

to exhibits 22 through 30, sustained the objection to exhibit 

14, and disposed of the cross-motions for summary judgment 

in Davis’ favor. The court found that although Buttercase 

denominated his claims as breach of contract, among other 

things, all claims involved professional negligence because 

they arose from Davis’ conduct as an attorney. It further found 

that these claims failed because a plaintiff alleging professional negligence on the part of a criminal defense attorney 

must show he or she is actually innocent of the “underlying 

crime,” and Buttercase failed to produce any evidence of this. 

Specifically, the court found that “[n]othing in the record” 

suggests Buttercase is actually innocent of the pornography 

charges and that he voluntarily pled guilty to the obscenity 

charge, “which arose out of the same incident underlying” the 

pornography charges. The court also issued a summary order 

that same day overruling all pending motions as moot.

Subsequent Motions and Hearing

Buttercase subsequently moved for an order “resetting all 

progression deadlines” to “resolve” his failure to timely disclose his expert. He also moved to alter or amend the summary judgment order because it did not provide any findings 

of fact or conclusions of law as to why his motion for partial 

summary judgment was denied and his breach of contract 

claim dismissed. He later amended this motion to argue that 

he need not show actual innocence to prevail on his breach 
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of contract claim. In addition, he moved for reconsideration, arguing that Davis’ affidavit should have been excluded 

because Davis failed to timely disclose himself as an expert. 

Buttercase also argued that his guilty plea to the obscenity 

charge was not voluntary because, when he pled guilty, he 

was unaware that his ex-wife would say she was an adult 

when the videos and images of her were produced.

The court heard arguments on these motions, as well as an 

oral motion for recusal that Buttercase made at the hearing. 

Buttercase argued that the court was biased toward him and 

favored “fellow attorney defendants,” as shown by its repeatedly excusing Davis’ failures to follow orders, while excluding 

exhibit 14 because Buttercase failed to meet a deadline. The 

court overruled all these motions that same day.

Buttercase appealed. While the appeal was pending, Davis 

passed away. The Nebraska Court of Appeals revived the matter against his heirs.

ASSIGNMENTS OF ERROR

Buttercase assigns, restated and reordered, that the district court erred by (1) sustaining Davis’ amended motion for 

summary judgment, (2) overruling his own amended motion 

for partial summary judgment, (3) denying his motions for a 

default judgment and to strike Davis’ answers, (4) denying his 

motion to stay the case, (5) overruling the objections to exhibits 22 through 30 and sustaining the objection to exhibit 14, 

and (6) denying his motion for recusal.

STANDARD OF REVIEW

[1,2] In reviewing a summary judgment, an appellate court 

views the evidence in the light most favorable to the party 

against whom the judgment was granted, and gives that party 

the benefit of all reasonable inferences deducible from the 

evidence. 1 An appellate court affirms a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 

1 Ag Valley Co-op v. Servinsky Engr., 311 Neb. 665, 974 N.W.2d 324 (2022).
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show there is no genuine issue as to any material facts and 

that the moving party is entitled to judgment as a matter 

of law. 2

[3] Although the denial of a motion for summary judgment, 

standing alone, is not a final, appealable order, when adverse 

parties have each moved for summary judgment and the trial 

court has sustained one of the motions, the reviewing court 

obtains jurisdiction over all motions and may determine the 

controversy which is the subject of those motions or make an 

order specifying the facts which appear without substantial controversy and direct such further proceedings as it deems just. 3

[4,5] Whether default judgment should be entered because 

of a party’s failure to timely respond to a petition rests within 

the discretion of the trial court, and an abuse of discretion must 

affirmatively appear to justify a reversal on such a ground. 4

An abuse of discretion occurs when a trial court’s decision is 

based upon reasons that are untenable or unreasonable or if 

its action is clearly against justice or conscience, reason, and 

evidence. 5

[6] The grant or denial of a stay of proceedings is reviewed 

for an abuse of discretion. 6

[7] A trial court has the discretion to determine the relevancy 

and admissibility of evidence, and such determinations will not 

be disturbed on appeal unless they constitute an abuse of that 

discretion. 7

[8] A motion requesting a judge to recuse himself or herself 

on the ground of bias or prejudice is addressed to the discretion of the judge, and an order overruling such a motion will be 

2 Id.

3 SFI Ltd. Partnership 8 v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014).

4 Mason State Bank v. Sekutera, 236 Neb. 361, 461 N.W.2d 517 (1990).

5 State v. McGovern, 311 Neb. 705, 974 N.W.2d 595 (2022).

6 Hawkins v. Delgado, 308 Neb. 301, 953 N.W.2d 765 (2021).

7 Noah’s Ark Processors v. UniFirst Corp., 310 Neb. 896, 970 N.W.2d 72 

(2022).
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affirmed on appeal unless the record establishes bias or prejudice as a matter of law. 8

ANALYSIS

Davis’ Amended Motion for 

Summary Judgment

Buttercase argues that the district court erred in granting 

summary judgment in Davis’ favor because there were “genuine triable issues of material facts” as to his actual innocence 

and other matters. 9 He also argues that the district court erred 

in finding that he voluntarily pled guilty to the obscenity 

charge.

[9] Actual innocence is one of four factors we have recognized in considering legal malpractice claims. In Rodriguez 

v. Nielsen,

 10 we held that a convicted criminal who files a 

legal malpractice claim must plead and prove the following: 

(1) the attorney’s employment, (2) the attorney’s neglect of a 

reasonable duty, (3) that such negligence resulted in and was 

the proximate cause of loss (damages) to the client, and (4) 

innocence of the underlying crime with which the plaintiff was 

charged. The Rodriguez court noted that the actual innocence 

factor serves the dual goals of ensuring that convicted criminals are not given “an opportunity to profit either directly or 

indirectly” from their criminal conduct and “encouraging the 

representation of criminal defendants, especially indigents.” 11

Here, the district court found that no reasonable finder 

of fact could infer from the evidence that Buttercase could 

prove actual innocence. 12 In doing so, the court relied on 

8 See In re Interest of Michael N., 302 Neb. 652, 925 N.W.2d 51 (2019).

9 Brief for appellant at 21.

10 Rodriguez v. Nielsen, 259 Neb. 264, 609 N.W.2d 368 (2000).

11 Id. at 271, 272, 609 N.W.2d at 374.

12 Cf. Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999) (defendant 

entitled to summary judgment if summary judgment evidence establishes, 

as matter of law, that at least one element of plaintiff’s cause of action 

cannot be established).
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Buttercase’s conviction in the federal criminal case, among 

other things. We agree, at least as to the obscenity charge.

Actual innocence means factual and not legal innocence; 

in other words, the State has convicted the wrong person. 13

Whether Buttercase produced evidence of his actual innocence of child pornography with his ex-wife’s statement at 

his sentencing hearing is perhaps arguable. However, we need 

not decide this issue because the situation as to the obscenity 

charge is clear. Here, there was no evidence suggesting that the 

federal government convicted the wrong person of this charge. 

To the contrary, the only evidence that Buttercase produced as 

to the obscenity charge was the judgment showing that he pled 

guilty to it.

This evidence is not negated by his ex-wife’s age or by the 

argument, first made in his motion for reconsideration and 

renewed on appeal, that his plea was not voluntary. The age 

of the subject of a video or image is not an element of the 

federal crime of obscenity, unlike with child pornography. 14

As such, evidence of his ex-wife’s age is not evidence of 

actual innocence of obscenity. Buttercase’s argument that his 

guilty plea to the obscenity charge was not voluntary because, 

when he pled guilty, he was unaware that his ex-wife would 

say she was an adult when the videos and images of her were 

produced fails for similar reasons. Insofar as her age is not 

an element of obscenity, he cannot reasonably have based his 

plea to the obscenity charge on what he believed she would 

say about her age. Moreover, as Davis noted on appeal, 

Buttercase himself knew his ex-wife’s age; he was not reliant on an attorney’s investigation or her statements for this 

information.

His related argument, that he would not have pled guilty 

but for Davis’ failure “to investigate and discover material 

13 See Marie v. State, 302 Neb. 217, 922 N.W.2d 733 (2019).

14 Compare 18 U.S.C. §§ 2251(a) and 2252A(a)(1) and (a)(5) (referring to 

minors or children) with 18 U.S.C. § 1465 (no such references).
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exculpatory evidence,” fails because it was not raised before 

the trial court. 15 When an argument or theory is raised for the 

first time on appeal, it will be disregarded inasmuch as a lower 

court cannot commit error in resolving an issue that was never 

presented and submitted to it for disposition. 16

The same is true for Buttercase’s arguments that he is actually innocent of obscenity because the videos and images are 

not obscene under the U.S. Supreme Court’s holding in Miller 

v. California 17 and that the federal obscenity statute cannot be 

constitutionally applied to him because, although he pled guilty 

to producing and transporting obscene materials for distribution, he only possessed and viewed images of his private intimate relations with his wife within his home. Neither argument 

was raised before the trial court, and as such, neither will be 

considered here.

[10] Finally, as to Buttercase’s argument that his production 

of exhibits 9 through 21 shows the existence of genuine issues 

of material fact, there is no merit. These exhibits included the 

third amended complaint; the affidavits of Buttercase, his parents, and a family friend; a receipt for $15,000; Buttercase’s 

letter refusing to pay the per diem fees for trial; an invoice 

for the computer expert’s services; a transcript of the hearing 

on Davis’ motion to withdraw; the judgment in the federal 

criminal case; a transcript of the sentencing hearing from the 

federal criminal case; and a letter from Buttercase to Davis 

requesting a refund. Insofar as these exhibits pertain to Davis’ 

employment, neglect of duty, and damages, they are immaterial because Buttercase failed to produce any evidence of 

actual innocence of obscenity. Failure of proof concerning an 

essential element of the nonmoving party’s case necessarily 

renders all other facts immaterial. 18

15 Brief for appellant at 17.

16 See Eletech, Inc. v. Conveyance Consulting Group, 308 Neb. 733, 956 

N.W.2d 692 (2021).

17 Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).

18 See Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 597 (2019).
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Buttercase’s Amended Motion for 

Partial Summary Judgment

Buttercase argues that the district court erred in treating all 

claims in his third amended complaint as professional negligence; he argues that only his breach of contract claim should 

have been treated as such. He also argues that actual innocence is not required for a claim of professional negligence 

and that Davis failed to produce any admissible evidence in 

opposition to Buttercase’s amended motion for summary judgment. These arguments are without merit.

[11] In a series of decisions over the past 50 years, this 

court has consistently held that plaintiffs cannot separate 

a cause of action arising primarily out of a professional’s 

alleged negligence and label it something else in the hope of 

creating a different theory of recovery. 19 Buttercase argues 

that these decisions apply only to plaintiffs who attempt 

to label professional negligence something else in order to 

avoid the 2-year statute of limitations in Neb. Rev. Stat. 

§ 25-222 (Reissue 2016) and, as such, have no bearing on him 

because his complaint was timely filed. However, in Gravel 

v. Schmidt,

 20 we found that the same reasoning used in cases 

involving statute of limitations concerns was applicable to a 

case where no statute of limitations concerns were noted, but 

where an alleged attorney-client relationship was asserted. 

Merely because a cause of action is couched in terms of a 

cause of action other than negligence does not make it so. 21

This is particularly true in this case where the same facts and 

19 See, Gravel v. Schmidt, 247 Neb. 404, 527 N.W.2d 199 (1995); Schendt 

v. Dewey, 246 Neb. 573, 520 N.W.2d 541 (1994); Maloley v. Shearson 

Lehman Hutton, Inc., 246 Neb. 701, 523 N.W.2d 27 (1994), disapproved 

on other grounds, Jorgensen v. State Nat. Bank & Trust, 255 Neb. 241, 

583 N.W.2d 331 (1998); Olsen v. Richards, 232 Neb. 298, 440 N.W.2d 463 

(1989); Jones v. Malloy, 226 Neb. 559, 412 N.W.2d 837 (1987); Stacey v. 

Pantano, 177 Neb. 694, 131 N.W.2d 163 (1964).

20 Gravel v. Schmidt, supra note 19.

21 Nuss v. Alexander, 269 Neb. 101, 691 N.W.2d 94 (2005).
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circumstances are implicated in both the breach of contract 

and the malpractice claims.

Buttercase’s argument that professional negligence, as 

alleged in his breach of contract claim, is distinct from legal 

malpractice and does not require a showing of actual innocence 

is similarly unavailing. He cites, in support of this argument, 

our holding in Rodriguez that “a convicted criminal who files a 

legal malpractice claim against his or her defense counsel must 

allege and prove that he or she is innocent of the underlying 

crime.” 22 However, he ignores other language in Rodriguez 

which clearly shows that legal malpractice and professional 

negligence are synonymous as to attorneys. 23 His alternative 

argument, that he proved he is actually innocent of both the 

child pornography and the obscenity charges, was properly 

rejected by the district court, as previously noted.

Buttercase’s argument regarding Davis’ alleged failure to 

produce any “admissible contradictory evidence” in response 

to his exhibits 31 through 41 likewise fails. 24 These exhibits included the third amended complaint; the affidavits of 

Buttercase, his parents, and a family friend; a motion to 

intervene by Buttercase’s father; Davis’ letter to Buttercase 

regarding the per diem fees for trial and Buttercase’s response; 

Davis’ motion to withdraw; and a transcript of the hearing on 

this motion.

Buttercase is correct that once a movant for summary judgment makes a prima facie case, the burden to produce evidence 

showing the existence of a material issue of fact that prevents 

22 Rodriguez v. Nielsen, supra note 10, 259 Neb. at 273, 609 N.W.2d at 374.

23 See, e.g., id. at 273, 609 N.W.2d at 375 (“[W]e do not agree with those 

jurisdictions that require convicted criminals to obtain exoneration through 

postconviction relief or reversal on appeal before pursuing an action 

for criminal legal malpractice; the statute of limitations for professional 

negligence . . . and our decision in Seevers v. Potter, 248 Neb. 621, 537 

N.W.2d 505 (1995), prevent us from adopting such a rule”).

24 Brief for appellant at 18.
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judgment as a matter of law shifts to the opposing party. 25

However, in this case, the district court properly concluded 

that Buttercase failed to make a prima facie showing on his 

breach of contract claim because all his claims are for professional negligence. Absent a prima facie showing by the movant 

that he or she is entitled to summary judgment, the opposing 

party is not required to reveal evidence that he or she expects 

to produce at trial to prove the allegations contained in his or 

her petition. 26 Thus, whether Davis produced any “admissible 

contradictory evidence” is immaterial.

Motions for Default 

Judgment and Motions 

to Strike Answer

Buttercase argues that the district court abused its discretion and erred in denying his motions for a default judgment 

because, on three occasions, Davis filed his answer more than 

30 days after service of the summons. As such, Buttercase 

maintains that he is entitled to a default judgment under 

Osborn v. Osborn 27 and Turbines Ltd. v. Transupport, Inc. 28

We find no abuse of discretion here given our precedents 

and the record on appeal. Osborn and Turbines Ltd. are inapposite. Osborn did not involve a default judgment, 29 while 

Turbines Ltd. reversed a grant of a default judgment, even 

though the defendant “clearly ignored the district court’s 

orders and failed to appear for trial,” because the complaint 

failed to state a cause of action for recission of the parties’ 

contract. 30

25 See Boyle v. Welsh, supra note 12.

26 Id.

27 Osborn v. Osborn, 4 Neb. App. 802, 550 N.W.2d 58 (1996).

28 Turbines Ltd. v. Transupport, Inc., 285 Neb. 129, 825 N.W.2d 767 (2013).

29 Osborn v. Osborn, supra note 27.

30 Turbines Ltd. v. Transupport, Inc., supra note 28, 285 Neb. at 145, 825 

N.W.2d at 779.
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Our other decisions make clear that, even if the defendant 

fails to plead or answer after a court-ordered deadline, the 

plaintiff is not necessarily entitled to a default judgment. For 

example, in Mason State Bank v. Sekutera,

 31 we upheld the 

denial of a default judgment even though the promisor failed to 

plead or answer within 20 days after the bank filed its amended 

complaint, as ordered by the district court. The promisor had 

not answered 2 months later, and the bank moved for a default 

judgment. 32 The promisor answered several weeks after the 

bank’s motion, at which time the district court overruled the 

motion as moot because there was an answer. 33 The bank 

appealed, and we affirmed because “[t]he record contain[ed] no 

evidence of . . . an abuse of discretion.” 34

Similarly, in Anest v. Chester B. Brown Co.,

 35 we upheld 

the denial of a default judgment even though the company 

failed to plead within 45 days, as ordered by the district court. 

The company had not answered approximately 7 months later, 

and the plaintiff in Anest moved for a default judgment. The 

district court overruled this motion, giving the company leave 

to answer instanter. 36 The plaintiff appealed, and we affirmed 

because no abuse of discretion was shown. 37 In fact, we 

expressly noted that a party in default may be permitted to 

answer at any time before judgment is issued. 38

In this case, as in Sekutera and Anest, there is no evidence 

that the district court abused its discretion in denying a default 

judgment. Buttercase is correct that Davis filed an answer 

31 Mason State Bank v. Sekutera, supra note 4.

32 Id.

33 Id.

34 Id. at 365, 461 N.W.2d at 520.

35 Anest v. Chester B. Brown Co., 169 Neb. 330, 99 N.W.2d 615 (1959).

36 Id.

37 Id.

38 Id.
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more than 30 days after service of an amended complaint on 

three occasions. However, as Sekutera and Anest show, delay 

in itself does not prove an abuse of discretion. Something 

more is needed, and such evidence is lacking here insofar as 

the record shows that the district court was aware of answers 

on file each time it overruled Buttercase’s motions for a 

default judgment. The record also shows that Davis filed a 

motion to dismiss in response to the original complaint, that 

Buttercase’s first two amended complaints were essentially 

the same as his original complaint, and that Davis moved to 

strike the third amended complaint because it was not properly 

served on him.

Buttercase also argued before the trial court that his objections and motions to strike Davis’ answers should have been 

granted under Neb. Rev. Stat. § 25-913 (Reissue 2016). 

However, he did not renew this argument, or make any other 

argument regarding his objections and motions to strike, on 

appeal despite assigning that the district court erred in overruling them. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically 

argued in the brief of the party asserting the error. 39 As such, 

we will not address this error because it was not argued in 

Buttercase’s briefs.

Stay of Proceedings

Buttercase argues that the district court abused its discretion and erred in declining to stay the proceedings pending his 

“appeals and postconviction relief proceedings in the federal 

courts.” 40 Relying on prior decisions in which we recognized 

that courts may stay civil suits until related criminal matters 

are resolved to avoid infringing criminal defendants’ rights, he 

asserts that he was prejudiced, and his due process rights were 

abridged, by defending this case before the evidentiary hearing in his postconviction relief proceedings.

39 Humphrey v. Smith, 311 Neb. 632, 974 N.W.2d 293 (2022).

40 Brief for appellant at 15.
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[12,13] Courts inherently possess the power to stay proceedings when required by the interests of justice. 41 In determining 

whether to exercise this power, courts balance the competing 

needs of the parties, taking into account, among other things, 

the court’s interests, the probability the proceeding will work a 

constitutional violation on the movant, the presence or absence 

of hardship or inequity, and the burden of proof. 42 Stays are 

often used to regulate the court’s own proceedings or to accommodate the needs of parallel proceedings. 43 However, a litigant 

has no constitutional right to have civil proceedings stayed 

pending the outcome of a criminal investigation. 44 The burden 

of establishing that a proceeding should be stayed rests on the 

party seeking the stay. 45

We find no abuse of discretion here. Buttercase quotes 

Seevers v. Potter 46 for the proposition that a criminal defendant 

who has not obtained postconviction relief, but wants to sue 

his or her attorney for malpractice, must file suit within the 

period prescribed by § 25-222 to preserve the claim, but then 

“‘can and should seek’” to stay the civil suit until the criminal 

case is resolved. 47 However, the language quoted comes not 

from this court, but from the Michigan Supreme Court, whose 

reasoning we adopted in Seevers when holding that the statute 

of limitations for a legal malpractice claim is not tolled until 

a criminal defendant obtains postconviction relief. 48 Neither 

41 Kelley v. Benchmark Homes, Inc., 250 Neb. 367, 550 N.W.2d 640 (1996), 

disapproved on other grounds, Webb v. American Employers Group, 268 

Neb. 473, 684 N.W.2d 33 (2004).

42 See id.

43 Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018).

44 See, e.g., Schuessler v. Benchmark Mktg. & Consulting, 243 Neb. 425, 500 

N.W.2d 529 (1993).

45 Id.

46 Seevers v. Potter, 248 Neb. 621, 537 N.W.2d 505 (1995).

47 Brief for appellant at 16.

48 Seevers v. Potter, supra note 46.
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Seevers nor the Michigan Supreme Court opinion quoted 

therein addressed whether the denial of a stay constituted an 

abuse of discretion.

Instead, it is the other opinion cited by Buttercase, Schuessler 

v. Benchmark Mktg. & Consulting,

 49 that illustrates the burden 

the proponent of a stay must meet. In Schuessler, a company 

moved to stay a wrongful discharge suit by one of its employees pending the outcome of an investigation into alleged mail 

and wire fraud by the company. The district court denied this 

motion, and we affirmed. 50 The company’s attorney had submitted an affidavit asserting that, because of the “‘similarity 

of the evidence and issues involved in the two matters,’” the 

company and its personnel could not present the necessary 

testimony and evidence in the civil case without subjecting 

themselves to possible incrimination in the criminal case. 51

However, we found that the “mere affidavit . . . , without more, 

simply does not provide enough evidence of inability to defend 

to convince us that the district court abused its discretion.” 52

We further noted that a “stay of a civil action, especially a stay 

of indefinite duration, is an extraordinary remedy” and would 

“obviously damage [the employee].” 53

The U.S. Supreme Court took a similar approach in United 

States v. Kordel,

 54 finding that officers of a company charged 

with both civil and criminal offenses by the federal government failed to show that denial of a stay constituted an abuse 

of discretion. The officers asserted that proceeding to trial in 

the civil case would violate their Fifth Amendment privilege 

against compulsory self-incrimination, but “they never even 

49 Schuessler v. Benchmark Mktg. & Consulting, supra note 44.

50 Id.

51 Id. at 432, 500 N.W.2d at 536.

52 Id. at 433, 500 N.W.2d at 536.

53 Id. at 432, 500 N.W.2d at 536.

54 United States v. Kordel, 397 U.S. 1, 90 S. Ct. 763, 25 L. Ed. 2d 1 (1970).
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asserted, let alone demonstrated, that there was no authorized 

person who could answer the interrogatories [in the civil case] 

without the possibility of compulsory self-incrimination.” 55

The officers also alleged unfairness and a violation of due 

process, but the court found nothing in the record to support 

these claims. 56

The situation here is like that in Schuessler and Kordel in 

that Buttercase makes vague claims about violations of due 

process and being harmed by the “disclosure of sensitive 

privileged information.” However, he offers no specifics, much 

less evidence, about how proceeding to trial on his civil claim 

would impede his ability to defend himself in his postconviction relief proceedings on the obscenity charge.

Admission of Evidence

Buttercase argues that the district court erred in overruling 

his objections to exhibits 22 through 30 on relevance, unfair 

prejudice, and other grounds. He also argues that the district 

court erred in excluding exhibit 14 upon Davis’ objection that 

Buttercase failed to disclose his expert by the deadline set in 

the court’s progression order.

[14-16] Under Neb. Evid. R. 401, evidence is relevant 

if it has any tendency to make the existence of any fact of 

consequence to the determination of the action more probable or less probable than it would be without the evidence. 57

Relevancy requires only that the probative value be something 

more than nothing. 58 Under Neb. Evid. R. 403, relevant evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice. 59 Most, if not 

55 Id., 397 U.S. at 9.

56 United States v. Kordel, supra note 54.

57 Lindsay Internat. Sales & Serv. v. Wegener, 301 Neb. 1, 917 N.W.2d 133 

(2018).

58 See id.

59 State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).
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all, evidence offered by a party is calculated to be prejudicial to the opposing party. 60 Unfair prejudice means an undue 

tendency to suggest a decision based on an improper basis. 61

Balancing the probative value of evidence against the danger 

of unfair prejudice is within the discretion of the trial court, 

whose decision we will not reverse unless there is an abuse 

of discretion. 62

We find no abuse of discretion here. As an initial matter, we 

note that the judgment in Buttercase’s federal criminal case, 

showing he pled guilty to obscenity, was offered by Buttercase 

as exhibit 19, as well as by Davis as exhibit 27. Exhibit 19 was 

admitted without objection. As such, Buttercase’s objection 

to exhibit 27 is moot because he himself introduced the same 

document into evidence, and we exclude exhibit 27 from the 

discussion below.

There is no merit to Buttercase’s argument that exhibits 22 

through 26 and 28 and 29 are not relevant because Davis did 

not represent him when he pled guilty to obscenity, and he was 

not a party to the ethics investigation and could not appeal its 

findings. The docket for the federal criminal case, as well as 

the indictment, petition to enter a guilty plea, and plea agreement in the federal criminal case and the statements about 

it in Davis’ affidavit, were relevant to the issue of whether 

Buttercase is actually innocent of the underlying charges. 

Similarly, the findings, recommendations, and order from the 

federal court’s ethics investigation were relevant to the issue of 

whether Davis caused damages to Buttercase when seeking to 

withdraw as counsel.

The relevance of exhibit 30, the sentencing order for 

Buttercase’s state convictions, is less clear. However, we need 

not speculate further about what fact it could make more or 

60 Id.

61 Id.

62 See id.
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less probable. To constitute reversible error in a civil case, the 

admission or exclusion of evidence must unfairly prejudice 

a substantial right of a litigant complaining about the evidence admitted or excluded, 63 and Buttercase cannot show the 

admission of exhibit 30 prejudiced a substantial right because 

the district court did not rely upon it in ruling upon Davis’ 

motion for summary judgment. In fact, neither exhibit 30 nor 

Buttercase’s Nebraska crimes are mentioned in the district 

court’s order.

Similarly, we find no abuse of discretion by the district court 

when balancing the probative value of exhibits 22 through 26, 

28, and 29 against any unfair prejudice that they might create. 

Buttercase has not offered any rationale for why these exhibits 

should have been excluded under Neb. R. Evid. 403. However, 

any argument he might make would be undercut by the fact 

that he himself offered evidence of his indictment on child 

pornography charges and his guilty plea to and sentence for 

obscenity. He also offered evidence showing the outcome of 

the federal court’s ethics investigation.

We also reject the suggestion that the admission of Davis’ 

affidavit, Buttercase’s petition to plead guilty to the federal 

obscenity charge, and the plea agreement regarding the obscenity charge constitutes reversible error because these exhibits 

are inadmissible under Neb. R. Evid. 410 or Neb. R. Evid. 

609(5). Even assuming any exhibits related to Buttercase’s 

plea to the federal charges, including the sections of Davis’ 

affidavit mentioning the plea, were erroneously admitted into 

evidence, this would not be grounds for overturning the district court’s decision because Buttercase himself introduced 

evidence showing his guilty plea and sentence for obscenity. 

The erroneous admission of evidence in a summary judgment hearing is not reversible error if other relevant evidence, 

63 Brown v. Jacobsen Land & Cattle Co., 297 Neb. 541, 900 N.W.2d 765 

(2017).
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admitted without objection or properly admitted over objection, sustains the trial court’s necessary factual findings, as it 

did here. 64

Buttercase’s remaining arguments as to why exhibits 22 

through 26 and 28 through 30 should have been excluded 

are similarly unavailing. Although Buttercase asserts that 

Davis’ affidavit and the findings, recommendations, and order 

from the ethics investigation include “fraud and perjury,” 65

the record shows that the federal court found “Davis did not 

misrepresent the facts in his motion to withdraw.” Likewise, 

the argument that Davis’ affidavit should have been excluded 

because he did not timely disclose himself as an expert 

fails because Buttercase did not raise it when he objected 

to exhibit 22 at the hearing on the cross-motions for summary judgment, despite raising it at that same hearing when 

arguing that exhibit 14 should be admitted. An objection to 

the admission of evidence is generally not timely unless it 

is made at the earliest opportunity after the ground for the 

objection becomes apparent. 66 A party who fails to make 

a timely objection to evidence waives the right on appeal 

to assert prejudicial error concerning the evidence received 

without objection. 67

As to Buttercase’s proposed exhibit 14, Buttercase is correct 

that the district court’s progression order addresses the disclosure of “experts who may be called to testify at trial,” and the 

offering of an affidavit in support of a motion for summary 

judgment can be distinguished from calling a witness at trial. 68

64 Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (2015), 

disapproved on other grounds, Weyh v. Gottsch, 303 Neb. 280, 929 

N.W.2d 40 (2019).

65 Brief for appellant at 29.

66 In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

67 State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).

68 Cf. Carrizales v. Creighton St. Joseph, 312 Neb. 296, 979 N.W.2d 81 

(2022).
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However, even assuming that the district court erred in excluding this exhibit, it is not reversible error. As we previously 

noted when discussing exhibit 30, to constitute reversible error 

in a civil case, the admission or exclusion of evidence must 

unfairly prejudice a substantial right of a litigant complaining 

about the evidence admitted or excluded. 69 This is not the case 

here. Exhibit 14 does not purport to address Buttercase’s actual 

innocence, which is why his opposition to Davis’ motion for 

summary judgment failed. Similarly, as to Buttercase’s own 

motion for partial summary judgment on his breach of contract 

claim, we found that the claim cannot be maintained as an 

independent claim, separate and apart from a claim of professional negligence.

Motion to Recuse

Buttercase argues that the district court erred in failing 

to recuse itself. He first moved for recusal during the hearing on his motion for reconsideration, arguing that the 

court repeatedly “allowed” Davis “to ignore its orders,” but 

excluded exhibit 14 because Buttercase failed to timely disclose his expert. 70 He renews this argument on appeal, as well 

as points to newly discovered evidence of alleged ex parte 

communications.

[17] Judges should recuse themselves when a litigant shows 

that a reasonable person, who knew the circumstances of the 

case, would question the judge’s impartiality under an objective standard of reasonableness, even though no actual bias 

or prejudice was shown. 71 A defendant seeking to disqualify a 

judge on the basis of bias or prejudice bears the heavy burden 

of overcoming the presumption of judicial impartiality. 72 An 

69 Brown v. Jacobsen Land & Cattle Co., supra note 63.

70 Brief for appellant at 33.

71 State v. Brunsen, 311 Neb. 368, 972 N.W.2d 405 (2022).

72 State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022).
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ex parte communication occurs when a judge communicates 

with any person concerning a pending or impending proceeding without notice to an adverse party. 73 Judges who initiate, 

invite, or receive ex parte communications concerning pending 

or impending proceedings must recuse themselves from the 

proceedings when a litigant requests recusal. 74

We find that Buttercase failed to meet the burden of showing 

that recusal was warranted here. He points to several rulings 

from the court that he asserts favored Davis and disfavored 

him. However, we have already found that the district court did 

not abuse its discretion in these rulings. Moreover, even assuming that Buttercase did not waive disqualification on this basis 

by failing to raise it before the motions for summary judgment 

were decided, 75 one of the cases he himself cites, Liteky v. 

United States,

 76 found that “opinions formed by the judge on 

the basis of facts introduced or events occurring in the court of 

the current proceedings” generally do not constitute a basis for 

a bias or partiality motion. The other case he cites as setting 

a “new standard” requiring recusal when the “‘probability of 

actual bias . . . is too high,’” 77 Caperton v. A. T. Massey Coal 

Co.,

 78 is similarly inapposite because it involved the appearance of bias created by campaign contributions to a judge, 

something not at issue here.

His evidence of an alleged ex parte communication similarly 

fails. He asserts that there must have been such communication 

73 State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).

74 See id.

75 See In re Interest of J.K., 300 Neb. 510, 915 N.W.2d 91 (2018).

76 Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 

2d 474 (1994). Cf. In re Interest of J.K., supra note 75, 300 Neb. at 518, 

915 N.W.2d at 98 (“[j]udicial rulings alone almost never constitute a valid 

basis” for bias motion).

77 Brief for appellant at 34.

78 Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252, 173 L. 

Ed. 2d 1208 (2009).
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because Davis filed his amended motion for summary judgment and related materials at 11:08 a.m. on May 8, 2020, and 

the court issued a progression order regarding summary judgment at 1:13 p.m. on May 8. He wonders, “How did [Davis] 

know to submit pleadings to the district court pursuant to 

a progression order that was not even filed yet without ex 

parte communications?” 79 However, the progression order in 

question concerned the original motions for summary judgment. It makes no mention of an amended motion or sets any 

deadline for the filing of one. As such, Davis’ May 8 filing 

was not made “pursuant” to the court’s order. Rather, the 

timing of Davis’ filing and the court’s progression order was 

purely coincidental. 80

CONCLUSION

Buttercase’s claims that the district court erred in disposing of the parties’ competing motions for summary judgment 

and its prejudgment interlocutory rulings are without merit. 

Accordingly, the judgment of the district court is affirmed.

Affirmed.

Heavican, C.J., and Miller-Lerman, J., not participating.

79 Brief for appellant at 33.

80 See, e.g., State v. Thompson, 301 Neb. 472, 476, 919 N.W.2d 122, 126 

(2018) (defendant failed to meet burden to show ex parte communication 

where court’s statement that charges against defendant “‘“may, from what 

the prosecutor tells me, change [if victim dies]”’” was based on court’s 

assumptions, not private conversation between state and prosecutor).